How is the Amount of Bail Determined?

The amount of bail set in any case is entirely at the discretion of the judge, and he or she has great authority in this matter. However, there are two important limits to the amount of the bail that can be set by the judge:

First, it’s important to note that the purpose of bail is not to punish the accused. Instead, the point is to make sure that the defendant shows up in court after being released on bail. The amount of bail should be set by the judge with this notion in mind. Excessive bail, often said to be “not warranted by the circumstances or the evidence at hand,” may be considered improper and is a violation of the defendant’s constitutional rights. Thus, when determining or “fixing” the amount of bail, the court (judge) will consider the seriousness of the charge, the existing criminal record of the defendant, and the overall likelihood of the defendant appearing for his or her trial or hearing.

Second, if public safety is an issue, the court may take this into consideration. For example, if threats are made against a victim or witness, a deadly weapon has been used, or other similar circumstances, the judge may set a higher than usual bail amount, and then must explain why the bail has been set higher by clearly indicating the safety issue. The bail amount set by the judge must be within what is considered the minimum range of bail that will reasonably assure the appearance of the defendant in court.